with whom Gunderson, J., agrees, concurring:
I concur with the opinion of the majority except insofar as its dicta purports to create a new crime in this state to be styled, “Second Degree Felony Murder.” The trial judge properly held that new crimes should be created by the legislature and not by the court.
In oral argument the state’s attorney agreed that it was not necessary to create the proposed new crime and that creation of *121a “second degree felony murder” was not necessary for effective prosecution of these kinds of drug cases.1 I agree with the state’s attorney and suggest that it is inappropriate and unnecessary to conjure up this brand new crime.
The defendant in this case can be prosecuted for second degree murder under present law. A second degree murder conviction may result from an unintentional killing when it occurs in the commission of an unlawful act which by its nature tends to destroy human life. NRS 200.070 (“[Wjhere the involuntary killing occurs in the commission of an unlawful act, which, in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent, the offense is murder.”); State v. Hall, 54 Nev. 213, 239, 13 P.2d 624, 632 (1932). Criminal liability for murder can attach in this case if it is established that the unlawful act of furnishing drugs was, under the circumstances of this case, an act which had a natural tendency to destroy human life. Consequently, as conceded by the state at oral argument, there is no need for the accretion of a new crime.
I agree with the majority that there is a “potential for untoward prosecutions resulting from this decision,” and believe that this danger presents an additional reason for this court to leave the creation of new crimes to the legislative branch of government.
THE COURT: In this case you don’t need a felony murder theory, do you?
COUNSEL FOR THE STATE: Under these facts I don’t think so.
THE COURT: Are you receding from your position? Are you suggesting that you, yourself, do not agree that this court should adopt a second degree felony murder rule with respect to drug cases?
COUNSEL FOR THE STATE: I have to say that if I were sitting where one of you are, I would not do so.
THE COURT: You have reached the conclusion that we should reject such a theory, correct?
COUNSEL FOR THE STATE: I think so.